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NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. TREY GUNTER, Appellee



### Appellant No. 830 WDA2016 Appeal

### fromtheJudgmentofSentence entered February 9, 2016 inthe CourtofCommon Pleas of Erie County, Criminal Division,at No(s): CP-25-CR-0003499-2014.
BEFORE: OLSON and RANSOM,JJ., and STEVENS,* P.J.E., MEMORANDUM BY RANSOM, J.: 

### FILED MAY

### 08, 2017 Appellant Trey Gunter appeals 

### from the 

### judgment of sentence of 

### fifteen to 

### forty years of 

### imprisonment, imposed February 9, 2016, 

### after he pleaded 

### guilty to 

### third-degree 

### murder.' Appellant's counsel has filed a 

### petition to 

### withdraw, alleging 

### that this appeal is 

### wholly frivolous, accompanied by an

### Anders brief.2 We 

### grant counsel's 

### withdrawal petition and 

### affirm the

### judgmentofsentence. The

### trial courtsummarized the 

### pertinentfacts as

### follows: [Appellant's conviction stems] from an 

### incident 

### that occurred on November 17, 2014, at an 

### apartmentoff-campus of 

### ' 18 Pa.C.S. § 

### 2502(c).

2

### See

### Anders v. 

### California, 386 U.S. 738 

### (1967).

*FormerJustice speciallyassigned to

### the SuperiorCourt.J

### -S11020-17
Edinboro 

### University. Appellant, a Pittsburgh native, was an Edinboro 

### student one 

### semester away from graduating. The 

### victim, Tobiah Johnson, had taken Appellant's gun several days earlier. 

### Appellant obtained 

### another gun, and, as alleged by the Commonwealth, 

### with the help 

### of Ryan Andrews and Michael Barron, 

### confronted the

### victim outside of the 

### victim's apartment. The 

### Commonwealth 

### further alleged 

### that Mr. Barron was 

### waiting outside of the 

### victim's apartment, and 

### that when the 

### victim came out, Mr. Barron punched him in his head, knocking him to the ground. 

### Appellant and Mr. Andrews got 

### out of

### their vehicle and assaulted the 

### victim. When the 

### victim tried to get up, 

### Appellantshot him in his back, killing him. Trial CourtOpinion, 

### 8/8/16, at 1-2. Following his 

### arrest, the Commonwealth and 

### Appellant's 

### trial counsel reached a plea 

### agreement, and 

### Appellant completed a 

### written plea 

### colloquy form. The 

### trial court conducted an oral 

### colloquy 

### with Appellant at an 

### evidentiary hearing on 

### September 23, 2015, and at its conclusion, the

### trial court accepted 

### Appellant's plea as 

### knowing, 

### voluntary and 

### intelligent. On February 9, 2016, the

### trial courtsentenced

### Appellant as 

### outlined above. The 

### courtdenied 

### Appellant's

### timely-filed motion to 

### modify sentence. This appeal follows. Both 

### Appellant and the 

### trial court have complied 

### with Pa.R.A.P. 1925.

### Within her

### Anders brief, Appellant's counsel addresses 

### the following issues

### Appellantwished to raise onappeal: A. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN ACCEPTING [APPELLANT'S] PLEA OF GUILTY WHEN [HE] DID NOT ENTER THE PLEA FREELY, KNOWINGLY AND INTELLIGENTLY? B. WHETHER [APPELLANT'S] SENTENCE IS MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT 

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WITH THE OBJECTIVE OF THE PENNSYLVANIA SENTENCING CODE? 

### Appellant's Briefat 4. "When presented 

### with an

### Anders brief,this Court may not review the 

### merits of the 

### underlying issues 

### without first passing on the request to 

### withdraw." 

### Commonwealth v. 

### Daniels, 999 A.2d 590, 593 (Pa. Super. 

### 2010). An

### Anders briefshall 

### complywith the requirements set

### forth byour SupremeCourt in 

### Commonwealth v.

### Santiago, 978 A.2d 349 (Pa. 

### 2009); [W[e hold 

### that in the 

### Anders brief 

### that accompanies 

### court-appointed counsel's 

### petition to 

### withdraw, counsel 

### must: (1) provide a 

### summary ofthe procedural 

### history and facts, 

### with citations to the record; (2) refer to 

### anything in the record 

### that counsel believes 

### arguably supports the appeal; (3) set 

### forth counsel's conclusion 

### that the appeal is 

### frivolous; and 

### (4) state counsel's reasons 

### for concluding 

### that the appeal is 

### frivolous. Counsel should 

### articulatethe 

### relevantfacts of record, 

### controlling case law, 

### and/or statutes on 

### point 

### that have led to the conclusion

### thatthe appeal is

### frivolous. 

### Id. at361. Counsel seeking to

### withdraw on 

### direct appeal 

### must meetthe following obligationsto his or her

### client: Counsel also 

### must provide a copy of the 

### Anders brief to his client. 

### Attending the brief must be a 

### letter that advises the client of his 

### right to: (1) retain new counsel to pursue the appeal; (2) proceed 

### pro se on appeal; or 

### (3) raise any points 

### that the 

### appellant deems 

### worthy of the 

### court[']s attention in 

### addition tothe points raised bycounsel inthe

### Anders brief. 

### Commonwealth v. 

### Oreliana, 86 A.3d 877, 880 (Pa. Super. 

### 2014) 

### (citations 

### omitted). 

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Upon review of counsel's 

### petition to 

### withdraw, the supporting 

### documentation, and her

### Anders brief, weconclude

### that counsel has satisfied the procedural 

### requirements of

### Anders/Santiago. "Once counsel has satisfied the above 

### requirements, it is then this Court's 

### duty to 

### conduct its own review of the 

### trial court's proceedings and 

### render an 

### independent

### judgment as to

### whetherthe appeal is, in 

### fact, 

### wholly 

### frivolous." 

### Commonwealth v. 

### Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) 

### (citation 

### omitted). Finally, 

### "this Court must conduct an 

### independent review ofthe record to discern if

### there are any

### additional, non- 

### frivolous issues overlooked by 

### counsel." 

### Commonwealth v. 

### Flowers, 113 A.3d 1246, 1250 (Pa. Super. 

### 2015) 

### (footnote and 

### citations

### omitted). Appellant 

### firstasserts 

### that he did not 

### enter a knowing, 

### voluntary, and 

### intelligent guilty plea. Hefailed to raise the issue ofthe

### validity of his

### guilty plea 

### either orally before the 

### trial court or in a post-sentence motion. Accordingly, this issue is waived 

### for purposes 

### of appeal. 

### See 

### generally, Pa.R.Crim.P. 

### 720(B); 

### Commonwealth v. 

### D'Collanfield, 805 A.2d 1244 (Pa. Super. 

### 2002). Moreover, absent 

### waiver, our review of the record 

### refutes Appellant's assertions 

### that he was not informed 

### of the elements of 

### third-degree murder orthe legal and 

### factual basis 

### for his 

### guilty plea. 

### See 

### generally,Commonwealth v. 

### Yeomans, 24A.3d 1044 (Pa. Super. 

### 2011). In his second issue, 

### Appellant challenges the 

### discretionary aspects of his sentence. As we 

### recentlyobserved in 

### Commonwealth v. 

### McLaine, 150 A.3d 70, 76 (Pa. Super. 

### 2016) 

### (citation 

### omitted), 

### "[a]n appellant is not

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entitled to the review of challenges to the 

### discretionary aspects of a sentence as a 

### matter of 

### right." Instead, to invoke our

### jurisdiction involving

a challenge to the 

### discretionary aspects 

### of a sentence, an 

### appellant must satisfythefollowing 

### four-parttest: (1) 

### whether appellant has filed a 

### timely notice of appeal, 

### see Pa.R.A.P. 902 and 

### 903; (2) 

### whether the issue was 

### properly preserved atsentencing or in a 

### motion to reconsider and 

### modify sentence, 

### see Pa.R.Crim.P. 

### 720; (3) 

### whether appellant's brief has a

### fatal defect, Pa.R.A.P. 

### 2119(f); and 

### (4)

### whetherthere is a 

### substantial question 

### that the sentence appealed 

### from is not 

### appropriate underthe Sentencing Code, 42 Pa.C.S.A. § 

### 9781(b). 

### Id.
Because 

### Appellant's has 

### met the 

### first three requirements, we 

### must determine whether he has raised a 

### substantial question. The presence 

### of a 

### substantial question is 

### determined on a case

### -by-case basis and 

### only exists when the 

### appellant advances a colorable 

### argument 

### that the sentencing 

### judge's actions were 

### either: (1) 

### inconsistentwith a specific provision of 

### the Sentencing Code; or (2) 

### contrary to the 

### fundamental norms which 

### underlie the sentencing process. 

### Commonwealth v. 

### Diehl, 140A.3d 34, 

### 44-45 (Pa. Super. 

### 2016) 

### (citations 

### omitted). Although Appellant acknowledges 

### that he received a standard-range 

### minimum sentence, he

### essentially argues

### thatthe

### trial court did not 

### properly consider the sentencing 

### factors found at 42 Pa.C.S. § 

### 9721, because it imposed a 

### lengthy sentence despite his 

### presentation of many 

### mitigating factors. An 

### argument

### thatthe sentencing 

### courtfailed to consider 

### mitigating 

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factors in 

### favor of a lesser sentence does not 

### present a 

### substantial question appropriate 

### for our review. 

### Commonwealth v. 

### Hanson, 856 A.2d 1254, 

### 1257-58 (Pa. Super. 

### 2004) (citing 

### Commonwealth v. 

### McNabb, 819 A.2d 54, 57 (Pa. Super. 

### 2003)). Sentencing is a 

### mattervested in the sound 

### discretion of

### thesentencing 

### court, and a sentence will not be 

### disturbed on appeal absent a 

### manifest abuse of

### discretion, which in 

### thiscontext, is notshown 

### merely byan

### error in 

### judgment; rather the 

### appellant must establish by reference to the record, 

### that the sentencing 

### court ignored or misapplied the law, exercised its 

### judgment for reasons of 

### partiality, prejudice, bias or ill 

### will, or arrived at a 

### manifestly unreasonable decision. 

### Commonwealth v. 

### Shull, 148 A.3d 820 (Pa. Super. 

### 2016). Even if we were to find a 

### substantial question to 

### exist, we would conclude

### thatthe

### trial court adequately explained atsentencing 

### why it chose

a 

### lengthysentence despite

### Appellant's evidenceof

### mitigation. As

### sentencing, the

### trial courtstated: THE COURT: All 

### right. I have considered the 

### statements of counsel. 

### I've considered the references of 

### character, the record 

### of those in 

### attendance. As stated 

### previously, I have 

### thoroughly read 

### the Pennsylvania Commission on Sentencing Guidelinesand I have read the pre-sentence 

### investigative report. I have made it a 

### part of the record. I have spent 

### exhaustive time going 

### through your prior history, [Appellant] through the Allegheny Office 

### ofChildren and Youth and Families. I have also read 

### extensively and 

### incorporated 

### your entire sentencing 

### memorandum as advocated by 

### [trial counsel], and 

### I've also considered the 

### government's comments in balance, including 

### their sentencing 

### memorandum. 

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So here's 

### what I am 

### left with. I do have to consider the nature ofthe offense, the 

### gravity, the need 

### for public

### protection, the chances 

### of 

### rehabilitation, several 

### of the 

### other factors as 

### outlined by 

### [trial counsel]. Those are all fair. But I do have a lot of discretion here. Let me 

### first start by 

### telling you 

### there is no chance 

### you're getting a sentence in the 

### mitigated range. I was perhaps open tothe idea 

### until I heard

### furtherfrom you. You are not

### committed to living a 

### crime-free life. Somehow, somewhere, you appearto me to be beholden to 

### thiswhole arena of, I

### think, gun 

### violence, gun use, and to some 

### extent, drug use. You had an 

### opportunity to explain the 

### texts 

### that were 

### attributed to 

### your phone. As a 

### former local andfederal prosecutor, and as a Judge now in my

### fourteenthyear, there is noquestion 

### what is going on in those messages. And it is at a 

### time 

### that is 

### within three days of

### this murder. Also, 

### I've considered 

### your level 

### of remorse. 

### I'm not 

### completely convinced how 

### remorseful you are, because if you were, you would have 

### thought about the consequences 

### of not only the gun 

### that was stolen 

### from you being in the hands 

### of perhaps 

### [the 

### victim] or perhaps others in the Edinboro 

### community, but also the whereabouts 

### of a 9 

### millimeter, the 

### murder weapon, if you 

### will, and where 

### that ended up. And we still 

### don't have 

### that accounted for. Those are 

### very concerning elements to me. N.T., 

### 2/9/16,at 

### 104-106. After imposing costs and 

### restitution, and declining to impose a 

### fine, the

### trial courtthen stated: I believe 

### that a standard range sentence is 

### appropriate and it will be as 

### follows: There will be a 

### minimum sentence 

### of

### fifteenyears to a 

### maximum of

### fortyyears. I will consider any request based upon 

### your conduct in prison as to 

### whether or not you will be and can be persuaded to be released 

### after serving 

### your minimum, but 

### that is a 

### matter of state parole review. You see, 

### [Appellant], you held the keys to 

### your sentence and you refused to 

### turn the lock. And I am convinced 

### this is 

### the least 

### restrictive way to accomplish the sentencing 

### factors 

### that are before me. 

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### Id. at 

### 106-107. In arguing an abuse 

### of discretion, Appellant essentially asks

### this court to reweigh the 

### legitimate sentencing 

### factors presented. This we 

### cannot do. 

### See 

### Commonwealth v. 

### Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing 

### Commonwealth v. 

### Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en banc) 

### (explaining 

### that an 

### allegation 

### that the sentencing 

### court did not 

### adequately consider various factors is, in 

### effect, a 

### request 

### that this Court 

### substitute its

### judgmentfor

### that ofthe 

### trial court in 

### fashioning a 

### defendant's sentence); 

### see 

### also Commonwealth v. 

### Fullin, 892 A.2d 843, 

### 849-580 (Pa. Super. 

### 2006) (where the sentencing court had the benefit of a pre- sentence 

### investigation report, we can assume the sentencing 

### court was aware of 

### relevant information regarding the 

### defendant's character and weighed those 

### considerations along 

### with mitigating 

### statutoryfactors). Thus, given the above, we agree 

### with counsel's assessment 

### that the issues 

### Appellant wished to raise on appeal are 

### frivolous. Moreover, our independent review of the record reveals no 

### other non

### -frivolous issue. We 

### thereforgrant counsel's 

### petition to

### withdraw and 

### affirm Appellant's

### judgment ofsentence.3

3 Given this disposition, we deny Appellant's pro se 

### motion 

### for remand 

### without prejudice to his 

### ability to raise his claim 

### of newly-discovered evidence in post

### -conviction proceedings.


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Petition to

### withdraw granted. Motion

### for Remand denied. 

### Judgmentof sentence

### affirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 5/8/2017



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